Rebecca MacKinnon's postings about work, reading, and ideas from 2004-2011.

June 15, 2010

The release of the Chinese government's first-ever White Paper on the Internet in China provoked some head-scratching here in the Western world. Part Three of the six-part document is titled "Guaranteeing Citizens' Freedom of Speech on the Internet." I've heard from several journalists and policy analysts (not people based in China, for whom such cognitive dissonance is normal) who at first glance thought they were reading The Onion or some kind of parody site. How, people asked me, can a government that so blatantly censors the Internet claim with a straight face to be protecting and upholding freedom of speech on the Internet? The answer of course is that China's netizens are free to do everything... except for the things they're not free to do. The list of the latter, outlined in the next section titled Protecting Internet Security is long, vague, and subject to considerable interpretation:

...The Chinese government attaches great importance to protecting the safe flow of Internet information, actively guides people to manage websites in accordance with the law and use the Internet in a wholesome and correct way. The Decision of the National People's Congress Standing Committee on Guarding Internet Security, Regulations on Telecommunications of the People's Republic of China and Measures on the Administration of Internet Information Services stipulate that no organization or individual may produce, duplicate, announce or disseminate information having the following contents: being against the cardinal principles set forth in the Constitution; endangering state security, divulging state secrets, subverting state power and jeopardizing national unification; damaging state honor and interests; instigating ethnic hatred or discrimination and jeopardizing ethnic unity; jeopardizing state religious policy, propagating heretical or superstitious ideas; spreading rumors, disrupting social order and stability; disseminating obscenity, pornography, gambling, violence, brutality and terror or abetting crime; humiliating or slandering others, trespassing on the lawful rights and interests of others; and other contents forbidden by laws and administrative regulations.

Other than that, people are totally free. What's more, the use of the Internet by the people to "supervise" public officials is praised. As long as - in the process of said supervision - state power is not subverted, "state honor" is not jeopardized, nobody is humiliated or slandered, and no "rumors" are spread. The rise of Twitter-like microblogging services is even praised. (Twitter itself is blocked by the "great firewall," though tens of thousands of Chinese Internet users are believed to access it anyway through third-party clients and circumvention tools).

As I've frequently pointed out in the past (see here, here and here for starters), blocking of foreign websites like Twitter is just the top layer of Chinese Internet censorship. Beneath the "great firewall of China" is a sophisticated system by which censorship is delegated to the private sector. The first company to set up a Chinese Twitter-clone was a startup called Fanfou. Last June they got shut down because they failed to police the service adequately: users apparently shared too much content that violated the above no-no list. Other micro-blog services have since emerged. One run by the People's Daily and another by the popular web portal Sina.com. They seem to have learned from Fanfou's troubles and have put aggressive censorship systems in place. As Chen Tong, Sina's head editor, recently commented at a 3G Wireless Industry Summit: "controlling content in Sina microblogs is a problem which is a very big headache." (The Shanghaiist blog reports that the Sina.com news article reporting Chen's comments has itself been censored, but not before getting quoted and reported around the Internet.) According to the Sina.com account of his remarks, Chen went on to describe Sina's microblog-censorship strategy in some detail: 24-7 policing; constant coordination between the editorial department and the "monitoring department" (all social networking companies in China must have one of those in order to stay in compliance with government expectations); daily meetings; and systems through which both editors and users are constantly reporting problematic content.

Even so, Chen Tong says in his speech that microblogging has been tremendously empowering in China. He says that micro-blogs have become "people's personal web portals" and that a lot of recent incidents that have generated widespread public concern first emerged on microblogs.

Despite all the policing and the round-the-clock censorship, Chinese Internet users still feel much more empowered to participate in public discourse and even bring issues to national attention than they ever could have imagined in the past. (See Guobin Yang's excellent book, The Power of the Internet in China for many examples.) As I described it to one journalist, it's as if a bird that has lived in a cage all its life (one which has been gradually upgraded, with steadily improving food and which is much cleaner than it used to be) suddenly gets released into a large atrium. The bird is likely to feel excited and empowered for quite some time and may not realize that even broader freedom is possible or even desirable: after all, without the atrium walls might she get lost and starve? Or get eaten by other birds? There are plenty of security arguments in favor of supporting the atrium's legitimacy and necessity; there are even ethical justifications.

Thus China is pioneering what I call "networked authoritarianism." Compared to classic authoritarianism, networked authoritarianism permits – or shall we say accepts the Internet’s inevitable consequences and adjusts – a lot more give-and-take between government and citizens than in a pre-Internet authoritarian state. While one party remains in control, a wide range of conversations about the country’s problems rage on websites and social networking services. The government follows online chatter, and sometimes people are even able to use the Internet to call attention to social problems or injustices, and even manage to have an impact on government policies. As a result, the average person with Internet or mobile access has a much greater sense of freedom – and may even feel like they have the ability to speak and be heard – in ways that weren’t possible under classic authoritarianism. It also makes most people a lot less likely to join a movement calling for radical political change. In many ways, the regime actually uses the Internet not only to extend its control but also to enhance its legitimacy.

At the same time, in the networked authoritarian state there is no guarantee of individual rights and freedoms. People go to jail when the powers-that-be decide they are too much of a threat – and there’s nothing anybody can do about it. Truly competitive, free and fair elections do not happen. The courts and the legal system are tools of the ruling party.

Connecting every citizen in China to the Internet via multiple devices might sound like something the Chinese Communist Party would want to avoid. Several people who contacted me about China's Internet White Paper were surprised at the Chinese government's enthusiasm for connectivity. Such enthusiasm does not jive with most American and European notions of how an authoritarian state would be run by a party that calls itself Communist. What's important to understand is that Chinese authoritarianism in the Internet age is not the same as the crumbling, centrally-planned authoritarianism of the Eastern Bloc, disconnected from the Western capitalist world.

The CCP leadership recognizes that they can’t control everybody all the time if they’re going to be a technologically advanced global economic powerhouse. What’s more, high Internet penetration is necessary if the Chinese government wants to continue high rates of economic growth, which economists agree requires boosting domestic consumer demand as well as pushing Chinese companies to the cutting edge of technological innovation.China catapulted itself to become the world’s second largest economy by turning itself into the world’s factory. But Chinese labor has grown expensive compared to some other markets in poorer countries. In order to stay competitive and keep growing, China needs to transition from a manufacturing-fueled economy to an economy fueled by domestic consumption at home, while being an innovator for advanced technologies and services that can compete with American and European companies.

Another component of the Chinese Communist Party’s survival strategy involves influencing the Internet’s technical evolution in ways that are most compatible with censorship and surveillance goals. China already has more Internet users than there are Americans on the planet. As the world’s biggest market for Internet technologies, it is starting to influence how these technologies evolve. The Internet is quickly morphing from something we’ve mainly used through our computers into a new, more mobile phase in which all devices, appliances and vehicles – from our phones to our cars to our refrigerators – will be connected to the network. The Chinese government is embracing this future. Prime Minister Wen Jiabao now gives speeches in which he waxes enthusiastic about the “Internet of things.” Chinese Internet and telecommunications companies receive substantial government support in hopes that they will lead the world in shaping the next generation of Internet technologies.

Beyond China, the fastest-growing markets for mobile Internet technologies are in Asia, the Middle East and Africa: exactly those parts of the world where authoritarian governments are most concentrated. Chinese telecommunications companies like Huawei and ZTE (the “Ciscos of China”) are already dominant in many African and Middle Eastern markets. They are building Internet and mobile networks in countries whose governments would prefer to have their systems built by Chinese engineers rather than by Americans.

Another thing that has puzzled some of the American journalists and analysts who contacted me is the Chinese government's assertion of its "sovereignty" on the Internet, given that the Internet is a globally inter-connected network and derives much of its value from the fact that borders are collapsed online. Yet at the same time, it's a physical reality that web sites have to be hosted physically on computers that are located in some jurisdiction or another; they are operated by physical human beings who reside under a government jurisdiction and can thus be physically controlled when necessary; they are operated by businesses that have to be registered in one or more jurisdiction and their physical operations are subject to government regulation; and the Internet runs on networks that physically exist within or pass through nation-states. The White Paper is a clear articulation of the Chinese government's long-standing position that nation-states should have "sovereignty" over all aspects of the Internet - human or equipment or signal - that reside within or pass through Chinese sovereign territory. Google is challenging this notion as it pushes the U.S. government to take action against China for violating WTO rules by using censorship as a barrier to trade. (For further discussion of China and Internet sovereignty see this Interview with Columbia University's Tim Wu conducted by The New Yorker's Evan Osnos.)

The White Paper also re-emphasizes the Chinese government's long-standing position that the global coordination tasks required to make the Internet function - what Internet policy wonks call "Internet governance" - are best left to governments, not private entities or companies or others. The White Paper did not condemn ICANN, the private non-profit which coordinates the Internet's domain name system - in fact it didn't even mention ICANN or other non-governmental organizations that coordinate the Internet's functions and anoint preferred global technical standards. Nor did it say anything negative about the "multi-stakeholder" governance approach currently favored by Western democracies, which includes non-governmental "civil society" organizations alongside governments and companies. But the document made clear China's position that " the UN should be given full scope in international Internet administration." As Brendan Kuerbis of the Internet Governance Project puts it, China is not intending to disengage from the existing Internet governance frameworks, but can be expected to exert its influence in shaping these frameworks in its preferred direction.

The White Paper's message is that the Chinese government is not running scared from the Internet. It is embracing the Internet head-on, intends to be a leader in its global evolution, and intends to assert its influence on how the global Internet is governed and regulated.

On a more optimistic note, the White Paper does have its domestic critics. Blogger, journalist and journalism professor Hu Yong argues (writing on a domestic blog which has not been censored) that most of the regulations governing the Chinese Internet have no clear basis in Chinese law and are arguably unconstitutional. "At a time when the Internet is raising a lot of questions that we don't have answers to," he writes, "the government may not have the best solutions. It's possible that the Internet could give birth to new forms of regulation that aren't as coercive, and which place greater trust in the strength of individual freedom and the self-governance of citizens." While the Internet does need to be regulated, he concludes, the public needs to participate in the creation of those regulations.

But as long as all of China's Internet companies and the few foreign Internet companies with a local presence in China continue to do whatever the government demands, no matter how little legal or constitutional legitimacy such demands might have, the government will have little incentive to accept the kind of change that Hu Yong envisions. Note that many of the big Chinese companies receive American investment dollars or are publicly traded on U.S. stock exchanges, sending a clear message that whatever U.S. elected officials might say about "Internet freedom," many American investors are quite happy to profit from China's status quo.

March 10, 2010

I'm back on Capitol Hill today to testify in the House of Representatives Foreign Affairs Committee. My full written testimony submitted for the record is here. The hearing will be webcast live on the House Foreign Relations Committee website here, and I believe the video will be archived on that page as well.

Yesterday members of the House launched an Internet Freedom Caucus and the Senate will be launching one as well later this month. Later this week I will write up my thoughts about Washington's recent flurry of activity on "Internet Freedom," including various efforts at legislation, funding to fight censorship and surveillance, and voluntary industry codes like the Global Network Initiative (with which I am actively involved). Meanwhile, here are the details of today's hearing:

Full Committee

Howard L. Berman (D-CA), Chairman

The Google Predicament:Transforming U.S. Cyberspace Policy to Advance Democracy, Security, and Trade

You are respectfully requested to attend the following open hearing of the
Full Committee to be held in Room 2172 of the Rayburn House Office Building.

January 19, 2010

Secretary of State Hillary Clinton plans to give a big speech about Internet freedom on Thursday. People are calling on her to speak loudly against Chinese censorship and stand firm for free speech on the Chinese Internet - and elsewhere like Iran. I've been invited to attend and I'm also going to be on a post-game analysis panel. But before the fun and games begin, I might as well add my two cents to the suggestion pile.

The wrong message for Clinton to give on Thursday would be something to the effect of: "Never fear, netizens of China, America is here to free you!"

My dream speech would be about how the Internet poses a challenge to all governments and most companies (except those companies like Google whose business is built around that challenge). I would call on all governments to work together with citizens, companies and each other to build a globally interconnected, free and open network that enhances the lives of everybody on the planet, enables commerce and innovation by big and small players alike, makes everybody richer and freer, and improves all governments' relations with their citizens by making government more transparent, efficient, and thus more credible and legitimate.

I would quote Benjamin Franklin, who wrote in 1759: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

The speech would remind us all that all power corrupts and absolute power corrupts absolutely, and that American democracy was built on this assumption. The Internet empowers governments and law enforcement agencies as well as citizens, upstart candidates, and dissidents. I would emphasize that the great challenge of our generation - as far as freedom is concerned - is to rediscover the right balance in the Internet age between society's need for security on the one hand, and the imperative of human rights and free expression on the other. Authoritarian nations obviously don't have the balance right which is why we consider them repressive. No democracy ever stops arguing internally about where the balance should be. But I would be honest about the fact that right now the world's democracies are arguing fiercely within and sometimes amongst themselves about where the right balance point should be in the Internet age. Wouldn't it be just so wonderful if the United States could take the lead in being honest rather than acting like the Lone Ranger on a white horse, much to the derision and cynicism of all my friends back in Asia, including the ones who hate their own governments?

The problem of censorship and surveillance is obviously many magnitudes worse when these things happen without a democratic political system, independent courts, and a free press. But as I've written here and here, I'm concerned that in the name of protecting children, fighting terror and preserving the intellectual property and pre-Internet business models of companies with deep pockets and powerful lobbies, Western democracies are going too far in enabling censorship and surveillance, in a way that in turn empowers and justifies what the Chinese and other authoritarian governments are doing. A few years ago China used to deny censoring because it wasn't something a government wanted to admit in polite company. Now they proudly respond to questions about their Internet policies along the lines of: "We're merely exercising our sovereign right just like everybody else. F-off."

The U.S. congress is getting energized again to make it illegal for U.S. companies to cooperate with surveillance in "internet-restricting countries" (an ever-growing list which - depending on how you define "internet-restricting" which one could argue over endlessly - includes a growing number of democracies and close U.S. trade partners). Yesterday Glenn Greenwald brought up a chillingly ironic fact about corporate collaboration with surveillance in America:

all of the sponsors of the pending bill to ban American companies from collaborating with domestic Internet spying in foreign countries -- the inspirationally-named Global Online Freedom Act of 2009 -- voted in favor of the 2008 bill to legalize what had been the illegal warrantless interception of emails and to immunize telecoms which helped our own government break the law in how it spied on Americans.

I will leave it there, and cross my fingers for Thursday. Meanwhile if you want a warm-up, I'll be speaking on a panel with Evgeny Morozov, Jim Fallows, Tim Wu and Sec. Clinton's special adviser Alec Ross at the New America Foundation tomorrow morning at 9:30am Eastern. The live webcast will be here.

December 17, 2009

Last week I attended a quiet event in San Francisco called the U.S.-China Internet Industry Forum, organized by Microsoft. This is the forum's third year - last year they met in Shanghai and the year before in Redmond. Attendees included executives from major U.S. and Chinese Internet companies, a few academics, and government officials from both countries - the highest ranking being Cai MIngzhao, Deputy Director of the Chinese Communist Party's Propaganda Department, and Robert Hormats, U.S. Undersecretary of State for Economic, Energy, and Agricultural Affairs. The event was an opportunity for key players from industry and government - from the country which invented the Internet and the country with the world's largest number of Internet users - to hold frank conversations in a relatively informal setting without the pressure of government or business negotiations. For a good part of the time, however, I felt like I was in the middle of a more sophisticated and nuanced version of this video mashup on YouTube:

For readers who don't follow all the twists and turns of Chinese Internet policy and/or understand Chinese, a bit of background. (For people who do, skip down below the jump.) Earlier this year, the Chinese government issued an edict requiring that all computers sold in China after July 1st had to come pre-installed with censorware called Green Dam-Youth Escort. While the ostensible purpose of this software was child-protection, it also censored political content and subjected users to external monitoring. (The government later backed down on this edict as a result of industry backlash.) Soon after the government edict became public a BBC journalist asked Chinese Foreign Ministry Spokesman why the government was requiring Green Dam censor-ware on all of China's computers:

"do you have any children? If you have any children or you are expecting some, you can understand the concern of the parents over the harmful Internet content. The Internet in China is open and the Chinese Government endeavors to promote sound development of the Internet. However, the Government also regulates the Internet according to law so as to safeguard the interests of the public and prevent the spread of harmful content."

The video juxtaposes Qin's statement with President Obama's remarks about the Internet at his town hall event in Shanghai:

"Think about -- when I think about my daughters, Malia and Sasha -- one is 11, one is 8 -- from their room, they can get on the Internet and they can travel to Shanghai. They can go anyplace in the world and they can learn about anything they want to learn about. And that's just an enormous power that they have. And that helps, I think, promote the kind of understanding that we talked about."

Back to the U.S.-China Internet Industry Forum. Much of the day-and-a-half long forum was under the Chatham House Rule, which means that participants can report on what was said but can't attribute anything directly. There were, however, several on-the-record keynote speeches. Cai and Hormats echoed the Qin-Obama riff. Here is how Xinhua News Agency reported Cai's speech:

An important part of network security was to ensure the security of online information, said Cai Mingzhao, former deputy director of China's State Council Information Office and an adviser to the Internet Society of China [note: they omitted his Communist Party post], which co-hosted the one-and-a-half-day forum with Microsoft Corporation.

Pornography, fraud, spam, online attacks and computer viruses were serious threats to information security and were impairing the public's confidence in the Internet, he said in a keynote speech on Thursday.

"Under such circumstances, it is not enough to emphasize the free flow of information alone. Information security should be put in a prominent position," Cai told an audience
of more than 100 government officials, business leaders, academics and other representatives from both countries.

"If network information security is not guaranteed, the information flow will become irregular. If illegal and harmful information are allowed to flow rampantly without checks, it will do great harm to the real society," he said.

Cai said the first priority of ensuring online security should be protecting adolescents, as teenagers had become the largest online group and whose growth was increasingly influenced by the Internet.

Each country has its own unique
circumstances, differing from each other in Internet penetration,
economic and social development, cultural traditions and laws, Cai
said, adding that ensuring online security should fully respect the
cultural diversity and concerns of all countries.

"Therefore, Internet security
around the world is unable to be measured by a unified standard. It is
impossible to regulate security with a single law or manage it in a
single pattern," Cai said.

What Xinhua did not report is that Cai called for the U.S. and China to move beyond differences and instead work together on four issues of common concern: Child protection, online intellectual property protection, spam, and cyber-security. He called on the two sides to create specific bilateral workstreams focused on these issues.

Hormats, on the other hand, spoke of common ground but also made it clear that the differences are meaningful. While Chinese media covered Cai's remarks, they did not mention any elements of Hormats' talk that differed from Cai's views. No U.S. media appear to have reported on the forum at all - at least not on news outlets available to the public domain. The State Department has not released a transcripts of his remarks either. I took notes and made a recording of his on-the-record speech in which Hormats emphasized that Internet freedom is important to the U.S. government. Here is an extended excerpt of the portion of the speech devoted to free expression (with relevant links added):

...The Internet offers us an unparalleled opportunity to acquire knowledge if we allow ourselves unrestricted access to it. As president Obama noted in his townhall meeting, freely flowing information allows people to think for themselves and to generate new ideas. It also encourages a great deal of creativity. this is true not only politically but also economically. The internet has produced entire new industries and revolutionized distribution of design and development of both goods and services. Unrestricted access to information is vital to the types of innovation that spark economic growth.

...It is the users and developers of online content who make our connections to the world wide web so valuable. Secretary Clinton has made improved access to information a significant part of her policy focus. She stated in a recent speech: "President Obama and i are committed to defending freedom of expression on the new terrain of the 21st century." Within the State Department our newly revitalized Global Internet Freedom Taskforce is ready to play a leading role in this critical effort. The task force, a policy coordinating body within the state department, co-chaired by myself and the State Department's Undersecretary for Democracy and Global Affairs Maria Otero, works to advance free expression and access to information on the Internet. The State Department monitors and reports on threats to Internet freedom around the world. It pursues the free flow of information and freedom of expression on the Internet in our bilateral relationship and through multilateral organizations as well.

The right to freedom of expression and the importance of the free flow of information over the Internet were confirmed by all participating governments at both phases of the World Summit on the Information Society in 2003 and then again in 2005, including the Tunis Commitment, and continue to form the foundation of U.S. government efforts on Internet freedom throughout the world.

We also work closely with individual companies and industry groups to foster improved access to information. one example is the Global Network Initiative, a group of leading private sector companies, NGO's, academicians and investors, that seeks to advance both freedom of expression and privacy in information and communication technologies. A number of the authors and leading advocates of the GNI are represented here today, and i commend them for their vision and their initiative. As president obama noted in his town hall meeting in Shanghai, we believe that certain core principles enshrined in our founding documents are universal rights also present in international documents like the universal declaration of human rights and we speak out for these principles around the world

We believe that commerce should be open and the information should generally be freely accessible. we recognize that potential downsides and risks may come with new technology, such as threats to children and online ability of terrorists to use the internet to organize. we look forward to working with China and the private sector both here and abroad to mitigate these risks while maximizing the free flow of information.

Hormats commended China for embracing the Internet and the global telecommunications revolution. He spoke at some length about the importance of the Internet in economic growth and recovery around the world. He also expressed concern about barriers erected by Chinese regulators against U.S. companies entering or fairly competing in the Chinese market. Later in the speech he also emphasized the importance of child protection, cyber security, and protecting intellectual property. If a full transcript of the speech becomes available later I will link to it here. (Update 12/19: An overview post about the forum by Microsoft VP Pamela Passman can be found here, and the transcript of a speech by Microsoft's Chief Research and Strategy Officer Craig Mundie is here.)

In a closed door session devoted to Internet governance later that morning (which, according to the Chatham House Rule I can report on in general as long as I don't quote or attribute anybody directly), another Chinese official and another U.S. official outlined their governments' positions, with corporate and academic participants also contributing.

The Chinese side emphasized that if Americans better understood the challenges faced by the Chinese government in maintaining social order, and if they realized that Chinese citizens hold high expectations toward their government in that regard, Americans would be more sympathetic to the Chinese government's policy choices and actions. Social problems tend to be amplified online and if people are allowed to do whatever they want on the Chinese Internet that would disrupt social stability, which they pointed out is in nobody's interest, and - given the Chinese Internet's size - isn't conducive to shared global goals of child protection, cyber-security and intellectual property protection anyway. They appealed to the Americans to focus more on commonalities and not try to impose their values on everybody else.

The U.S. side focused more specifically on the future of global Internet governance, emphasizing three overarching goals: interconnectivity, free flow of information, and preserving the Internet's "dynamism." The best way of preserving that dynamism is to "leave it alone" as much as possible, and specifically not to put Internet governance in the hands of an "intergovernmental institution." The U.S. government supports a multistakeholder approach with a leading role for ICANN accompanied by a renewed mandate for the Internet Governance Forum. Putting Internet governance in the hands of inter-government bodies such as the U.N.'s International Telecommunications Union is not desirable because such institutions can't keep up with the pace of technological change. Restrictions on the free flow of information should be a "rare exception" in very narrowly defined cases of child pornography, human trafficking, and terrorism. Errors of under-reaction and over-reaction can only be achieved through continuous dialogue between public and private sectors.

Asked to make some brief comments, I suggested that we combine components of both Chinese and U.S. suggestions made that day. Why not set up U.S.-China "work streams" to drill down on problem-solving in specific areas Mr. Cai suggested like cyber-security, child protection, and intellectual property. But as both Hormats and other U.S. officials pointed out, the Internet is what it is today not just thanks to the efforts of governments and big Internet companies, but because of the actions and choices of small entrepreneurs and individual Internet users of all kinds. Therefore it only makes sense that such work streams should be truly multi-stakeholder in nature, including members of civil society, representatives of user groups, consumer groups, open source programming groups, and other stakeholders - because after all, no solutions to any of the problems discussed are going to succeed without broad-based support and buy-in from netizens around the globe. Models for multi-stakeholder problem-solving are still in their infancy and have much room for improvement (as neither members of civil society nor the Chinese government hesitate to point out). So why not experiment with using bilateral meetings as an opportunity to improve on the multi-stakeholder model - in a more narrow situation involving only two cultures, instead of hundreds? A number of American heads nodded. I did not detect a positive reaction to this idea from the Chinese side. They did tell me that they wished my criticism of their censorship would be better balanced by an explanation of all the reasons why they need to do what they do. A corporate person asked me what might be done to help bridge misunderstandings between the two countries. I suggested that more direct dialogue between citizens of both countries - and more platforms to facilitate such interaction - would be helpful.

Of course, the problem is that the Chinese citizens participating in such citizen dialogue may not necessarily be in lockstep with their government's positions... And oh yeah, you don't really need to build anything new or special because there are all kinds of great social networking platforms like Twitter and Facebook out there... But wait they're blocked in China so Americans only wind up interacting with the most determined Chinese Internet users who are angry about censorship and figured out how to use circumvention tools....Which is why in another keynote speech at the forum, Wikipedia founder Jimmy Wales argued that the best way for China to get its story out is to let its citizens communicate with the world through unblocked platforms...

December 13, 2009

As the year draws to a close, China's blocking of overseas websites - including Facebook, Twitter, and thousands of other websites including this blog - is more extensive and technically more sophisticated than ever. Controls over domestic content have also been tightening. People who work for Chinese Internet companies continue to complain that they remain under heavy pressure to be more thorough about the way in which they police and censor blogging platforms, social networking sites, discussion forums, and any form of user-generated content. As feared, the censorship arms race, which began in the run-up to the anniversary of the June 4th crackdown, intensified after the Xinjiang riots, and ramped up further in the run-up to the October 1st 60th Anniversary of the People's Republic of China passed uneventfully.

The past few weeks have seen four new moves which are not officially or overtly aimed at political content, but which have implications for the way in which the government controls all conveyors of all kinds of speech. First, late November saw the launch of a mobile porn crackdown. The draconian way in which this crackdown is being implemented, however, involves a great deal of collateral damage for non-pornographic content. For example, the crackdown has caused China Mobile and other wireless carriers to suspend all billing of all WAP and G+ mobile services, including those by legitimate companies in good standing who are not involved with porn. As this article in Chinese on DoNews points out, the mobile content market in China is growing fast and getting quite lucrative.

Second, Chinese the state-run media is going after the search engines again for - horror of horrors, turning up smutty results when users search for smutty information. In early December, China Central Television (CCTV) ran a report which accused Google, Baidu, and Sohu of irresponsibility. According to the research firm JLM Pacific Epoch:

"The report said Google "persisted in its old ways" and "explored every avenue to avoid China's 'anti-low-brow' campaign" after previous reports on the subject by the state broadcaster but noted that Google's
English version contains content far more obscene than its Chinese
language site. None of the three parties has made any official
response, the report said."

I would not want to be running Google China these days. No fun.

Third, last week the government shut down more than 500 file-sharing websites as part of an anti-porn and anti-piracy crackdown, on the grounds that these websites don't have proper licenses. For a sampling of Chinese netizen reaction, see Global Voices Online and People's Daily Online. ReadWriteWeb points out that given China's strict government controls on what movies can legally be shown, these sites are the only way for many Chinese to access a lot of content. Much political jockeying by the more established services is now underway, and Xinhua indicates that the largest file-sharing site, VeryCD is fighting for survival.

Fourth, CNNIC, the organization which runs the .cn top-level domain has announced that it is no longer accepting domain name applications from individuals. The stated reason in news reports is to control abuse of the .cn domain name space by criminals. Under the new rules, if you want to buy any domain name ending in .cn you have to provide ID and proof of company or organizational registration. As the Internet Governance Project's Milton Mueller puts it, "China's government is using its control of domain names to impose more strict controls over the Internet." Chinese Internet users have an interesting take on this latest development. Some like William Long say that this is actually a good thing, because anybody who isn't in lockstep with the Chinese government is better off staying away from .cn to begin with. Since January he has been urging Chinese Internet users not to use .cn domains, even posting instructions for how to buy domains on GoDaddy, arguing that .cn domains are too risky because the government could take the domain away from you at any time on vague grounds that you are violating some Chinese law, regulation, or whatever.

It's also worth noting that CNNIC is now applying to ICANN to run .中国 - and plans to apply for .网络 and .公司 whenever ICANN opens up the application process for generic top-level domains. As the Internet's domain name system becomes multilingual, will the Chinese language domain space be hospitable to anybody who is not in total synch with the PRC government? The answer is pretty clear by now: only if non-PRC entities can run Chinese-language top-level domains outside of China. Will ICANN ensure that this will indeed be possible? We don't know yet. ICANN is still formulating the application process for new generic top-level domains, which includes the details of a process by which governments can object to - and potentially block - applications.

November 19, 2009

On the final day of a four-day meeting, most government representatives expressed support for renewing the Internet Governance Forum's five-year mandate which ends next year. China did not. Chen Yin, the head of the Chinese delegation to the Internet Governance Forum, said yesterday that the IGF's mandate should not be continued without reforms. Below is the full text of his statement, taken from the official transcript here (PDF). Video (with bad-quality audio in Chinese) can be found on YouTube here. I've added a few links so that the acronyms will make more sense to people who aren't professional Internet governance wonks:

Thank you, Mr. Chairman.

The Chinese delegation has noted that as mandated by WSIS, IGF has conducted productive and effective activities in promoting dialogue and exchange among the multi-stakeholders, and will conclude its mandate within its five-year life span. We would like to congratulate and appreciate the excellent work done by IGF Secretariat, MAG, and all the hosting countries including Greece, Brazil, India and Egypt. Meanwhile, we would like to point out some of the IGF shortcomings, as described following.

Secondly, the developing countries are lack of resources for participating in IGF meetings, and the priority of development agenda has been downplayed, which made IGF lacking of broad representation.

Thirdly, the issues discussed in IGF have duplicated a lot with the work being explored and covered by other UN agencies and international organizations.

Therefore, Chinese delegation think, without reform to the IGF as it is, it is not necessary to give the IGF a five-year extension. In the meantime, we noted that relevant parties, developing countries in particular, hope that internet governance issues could be discussed at the U.N. level. We support the views of Saudi Arabia and other developing countries in their proposal to set up the Enhanced Cooperation mechanism within the U.N. framework.

In our view, if the mechanism of Enhanced Cooperation needs the extension of IGF for the purpose of exchanging views among multi-stakeholders, IGF should carry out reforms in the following ways.

First, the future IGF should, in accordance with the provision of Tunis Agenda, focus on how to solve the issue of unilateral control of the critical Internet resources.

Secondly, the representation and voices of the developing countries should be increased in the IGF, and the development issue should be placed as the first priority.

Thirdly, we should seriously consider the possibility of incorporating IGF financing into the regular U.N. budget, and provide assistance to developing countries for their participation in the IGF meetings.

Fourthly, we should follow rigidly the Tunis Agenda so that the reformed IGF should not duplicate the work and mandate of the other organizations.

Fifthly, a Bureau should be set up with a balanced membership of various parties and geographical regions, and its term of reference and rules of procedures should be formulated by the United Nation.

Sixthly, on tenure of the future IGF, we deem it necessary to review the extension of the IGF every two or three years.

In the view of the Chinese delegation, the setting up of a mechanism for Enhanced Cooperation with a reformed IGF will effectively promote the global Internet governance process and facilitate the achievement of Millennium Development Goals.

Kummer said in his briefing that the UN has a "no-poster policy," although various other posters have in fact appeared at various times throughout the conference. One example here. According to those present during the ONI incident, the reason for the poster's removal given by U.N. security officials at the time was that a U.N. member state had complained about it. Given that the poster mentioned Chinese Internet censorship, we can guess which member state objected.

The Chinese government made it clear earlier this year that they do not want the IGF to continue. Veteran IGF attendees have pointed out that there has been no Chinese-organized panel or workshop this year, in contrast to previous years. In conversations in the corridors with some participants from Western governments and other organizations, a number of people have expressed concern that China is feeling alienated. Nobody is sure what China's next move will be, and there is worry that the Chinese government may ally itself with some other governments in a move to end the IGF after its initial five-year mandate expires next year.

In a workshop about governance of social networks on Tuesday afternoon, I raised a number of specific examples of how various governments are moving to stifle free expression by their citizens on social networking websites through a variety of censorship and surveillance measures. I also raised other problems that some human rights activists in
specific countries have encountered when using social networks to
document human rights violations or organize political movements: they
sometimes get their accounts shut down by company administrators
because their images documenting human rights abuses are too violent or
the pattern of their political organizing activity is too similar to
spamming. Examples included:

China's system of censoring blogs and social networking services: Overseas services like Twitter, Facebook, YouTube, Flickr, Blogspot, and the like are blocked in China. As a result most people in China use social networks and blogging services run by domestic companies which are held liable for everything their users post on their services. These companies end up having to set up up entire departments of employees whose job it is to monitor and censor all user-generated content on their services. Foreign companies wanting to create localized versions are expected to do the same. MySpace is one company that ended up doing so, though many other companies - including Facebook - have opted for now not to set up censored versions of their services inside China, despite the fact that this denies them access to a large user base, because they are uncomfortable getting so deeply into the censorship game.

Egyptian blogger and journalist Wael Abbas used YouTube to document human rights abuse and torture by the Egyptian police, and got his account suspended by YouTube administrators because they thought he had violated Terms of Service banning "gratuitous violence."

Grassroots political activists in a range of countries from India to the United States have had their Facebook accounts suspended because Facebook's automated systems thought they were spammers.

This afternoon (4pm local time, 9am EST, 9pm Beijing) I will be speaking on a plenary panel about social networks. I and the other panelists have been told very clearly by people in charge that we can't mention specific U.N. member countries, and we're discouraged from "naming and shaming" any other kinds of specific entities as well. It's going to be rather difficult to discuss emerging issues related to social networks without being able to give any specific examples of specific countries and companies. More broadly, it's rather difficult to make progress in global Internet governance without being able to discuss specific cases in the public meetings, or applying any value judgments to what any of the actors are doing. But that's the United Nations for you. Last night I considered whether it even made sense for me to remain on the panel. I decided to stay on it because I hope that I can get a message across - albeit generically - about free expression concerns on social networks, and how the Global Network Initiative is one way to help companies navigate these concerns.

Rebecca MacKinnon, a Web researcher writing a book about lessons from China on Internet freedom, praises Icann for being influenced by nongovernmental groups, not just governments. “The U.N. model of Internet governance is highly unsatisfactory from a human-rights and free-expression point of view for obvious reasons,” she told me. “The Chinese and the Iranians and various other authoritarian countries will insist on standards and rules that make dissent more difficult, destroy the possibility of anonymity, and facilitate surveillance.”

Up to now, governments have been largely hands-off. An amusing example is the dispute over the domain www.newzealand.com. The queen of England, “in right of her Government in New Zealand, as Trustee for the Citizens, Organizations and State of New Zealand,” brought an action in 2002 against a Seattle-based company called Virtual Countries Inc. that had registered the Web address. The queen argued that her antipodean country should have control over its own .com name. This may sound reasonable, but she lost. New Zealand had to buy the .com address for $500,000.

Will governments like China’s be as philosophical about Internet domain decisions they don’t like?

Countries such as China, Russia and Iran have long argued that it’s wrong for Icann to report to the U.S. government. Any alternative to the light control exerted by the U.S. government could put the Web on a slippery course toward more control. This is one reason efforts by these countries to politicize Icann have failed in the past.

“I think the question here is not about which governments have the moral right to lead Internet governance over others,” Ms. MacKinnon argues, “but about whether it’s appropriate that Internet governance should be the sole province of governments, many of which do not arguably represent the interests of Internet users in their countries because they were not democratically elected.”

Crovitz emailed me last week when he was researching his column. I was somewhat more critical of ICANN's status quo in our exchange than in the quotes he ended up using. Below are my full answers, emailed to him on Thursday (hyperlinks added for people not familiar with some of the names, events, and terms to which I refer without explanation). If you are not familiar with ICANN acronyms and developments you may want to read this post and this post first.

Q: Why has China re-engaged with ICANN and what are Beijing's main concerns?

A: First of all, the issue of how Taiwan is to be named and treated is now resolved, and given the improvement in cross straits relations, sitting around the same table with the Taiwanese delegation has ceased to be an insurmountable issue. Secondly, ICANN is at a major juncture as it prepares to roll out internationalized TLD's, which means that URLs, completely in Chinese, before and after the dot, will become internationally possible for the first time ever in 2010. There are a bunch of technical issues with the way IDN TLD's get implemented, including whether it will be possible to have less than three characters in IDN gTLDs, etc., etc. (And given that most words in Chinese are 2 characters, that's a big deal which the mainly Western staff has a hard time getting their heads round.) There is also a long list of outstanding, unresolved details regarding the "new applicant guidebook" which will be finalized later this year: requirements for who can apply to run a new TLD, how much they'll be charged, who has the right to object to the use of certain brand names or place names or other names that certain cultures feel they have claim to, etc. The Chinese government and Chinese companies clearly have an interest in the details of how these things get implemented because it will impact how the Chinese language Internet can evolve internationally in the years to come. So Beijing really can't afford to be disengaged from ICANN if it wants to have a role in shaping these things.

Another reason China disengaged from ICANN was that during the WSIS process it and a number of other countries (Iran, Brazil, the EU) were pushing to have internet governance moved out of ICANN to the ITU or some other UN-like or UN body. However at WSIS in 2005 it became clear that there wasn't sufficient international consensus for that to happen, human rights groups (including HRW) were vocal about the free speech implications, and the U.S. insisted on maintaining the status quo. A compromise was the formation of the IGF- a yearly multistakeholder forum where people from all around the world - governments, corporations, and civil society, get together and try to work out what the main issues are on Internet governance and where things shoudl go from here. China has declared the IGF to be a waste of time that should be discontinued. It argues that that Internet governance should be left to governments, who adequately represent the interests of internet users, and that the multistakeholder governance model (which ICANN also uses, but as part of actual decision-making structures unlike the IGF which is only a talk shop) is ineffective and unnecessary.

Q: What concerns should others have about China's re-engagement?

A: China's re-engagement with ICANN is actually a good thing, as long as ICANN maintains its multistakeholder, consensus-based decisionmaking structure, and as long as the Government Advisory Council (which China rejoined) is not given excessive powers disproportionate to other stakeholder groups within ICANN. Chinese registrars and registries have remained engaged throughout ICANN's life, actually. It's just that the government wasn't engaged. The issue is whether China will feel that its interests (many of which are reasonable, like properly serving the linguistic and technical needs of Chinese Internet users and making it possible for Chinese companies to operate on an even playing field with Western ones) are adequately served within the ICANN structure, or whether it ultimately concludes that ICANN can't ultimately serve its interests, in which case they will go back to advocating its total dismantlement - or lead the way in splitting the root, taking the non-English speaking developing world with them.

The key in my view is to ensure that Chinese non-governmental civil society interests, and the interests of Chinese speakers not living in the PRC, can be heard and upheld by ICANN as it works out the shape of the global multilingual Internet. Whether or not that happens depends in part on whether non-PRC and Chinese non-governmental groups recognize the importance of engaging with ICANN, and get the financial support they need to engage, attend its meetings, and get involved with GNSO council through which at-large users and non-commercial voices can voice their concerns and seek representation. Right now Chinese civil society voices are absent from ICANN. Nobody's blocking them from being there necessarily - they're just not there. I guess mainly because very few people in the human rights/free expression space are paying any attention to ICANN if they even know it exists..

Q: The planned IDN/gTLD expansions could empower groups that might not be in political favor by giving them their own extensions, etc.. Does the governance structure of ICANN, with ultimate authority resting in the U.S. Dept. of Commerce., create an opportunity for greater rights to free expression? How has ICANN and Commerce been doing with this reponsibility?

A: From everything I have observed, the U.S. government's relationship with ICANN is extremely hands-off. That may be in part because ICANN isn't doing anything that goes against U.S. interests. But ICANN's decisionmaking structure is very complex. It's not like they're taking orders from Gary Locke and his people. They have a board and several layers of councils and constituencies who feed into the board's decision-making process, in addition to a large number of paid staff, and a CEO. The engineers who actually make the DNS work have a lot of power. So do the commercial registrars and registries, and other groups. Then there is an at-large user constituency and a non-commercial user constituency, both of which feed into the GNSO council which then feeds into the board. Etc. I do get the sense that the primary criteria for decision making has to do with what will keep the global internet working smoothly and what will make the domain name system globally inter-operable, rather than what the U.S. government wants.

I can certainly see why everybody except Americans think it's unfair, however, that the U.S. has ultimate power over ICANN. Especially at a time when Americans are no longer the biggest user group on the internet, we're shrinking fast as a percentage of overall global internet users. Chinese are now the biggest user group and they're only going to get bigger. Whatever I think of the Chinese government, I can understand how the situation looks to non-Americans. Insisting that the U.S. should keep the keys to ICANN is like saying that only white male Protestant land-owners from Virginia deserve the right to have the final say over how the U.S. is run. In the long run insisting on the status quo is a very un-democratic position to hold, if we are actually going to be intellectually honest.

That said, the UN model of internet governance is highly unsatisfactory from a human rights and free expression point of view for obvious reasons: the Chinese and the Iranians and various other authoritarian countries will insist on standards and rules that make dissent more difficult, destroy the possibility of anonymity and facilitate surveillance. No good. So what to do?

Ultimately, I think the question here is not about which governments have the moral right to lead Internet governance over others, but about whether it's appropriate that Internet governance should be the sole province of governments, many of which do not arguably represent the interests of Internet users in their countries because they were not democratically elected. In addition, I don't trust any government or any collection of governments - even if it were restricted to mature democracies - to uphold my freedom of speech and civil liberties. I don't think the U.S. government has been doing such a stellar job lately, and it too is placing increasing priority on security and fighting crime at the expense, I believe, of free speech and privacy. Sure we need security, but I don't think the USG had the balance right under Bush and I think Obama will disappoint the human rights/free speech community as well. Which is one reason why I think that having a multistakeholder model of Internet governance - in which both civil society and a range of private interests are able to have an equal role in decisionmaking alongside government representatives - is extremely important. There are too many constituencies across the global Internet whose interests cannot not be adequately represented, and whose rights cannot be adequately protected, by traditional geopolitical constructs.

So in my ideal scenario, ICANN's agreement with Commerce gets renewed in September but acknowledging the reality that ICANN's governance model has to evolve into something both more international and more multistakeholder-based over the longer term. Because if it doesn't, and if large parts of the world led by China eventually decide they want to create an alternative DNS not governed by ICANN because ICANN's Internet fails to suit their needs, they can and will do that. And that would be much, much worse. ICANN only has any power at all because everybody in the world has agreed to use its DNS.

Meanwhile efforts need to be made to help non-governmental civil society constituencies from Asia, the Middle East, Latin America, the former Soviet Bloc, and Africa gain a stronger foothold and voice within ICANN's multistakeholder structure. So that when the inevitable happens and the U.S. moves over to share power with other governments, as is only reasonable as Americans become a shrinking minority of Internet users, there will be plenty of other stakeholders involved with the process making sure that the governments who weren't elected and who would prefer to suppress dissent are not able to hijack the Internet's future as they've hijacked certain UN bodies.

***

So ends the e-mail exchange. One thing I did not get into with Crovitz are my concerns about whether ICANN's multi-stakeholder model is truly effective, and whether it is currently doing enough to listen to the needs of Internet users in the developing world and people who stand to benefit most from the forthcoming expansion of IDN gTLD's. Right now, I don't think ICANN is doing an adequate job at incorporating the concerns of non-commercial, civil society interests into its decision-making process.

If ICANN is serious about serving the needs and interests of all of the world's Internet users - not just the rich Western ones - they need to find a way to strengthen, support, and empower ICANN's non-commercial users. As the Internet expands to become a largely non-English place, the concerns of non-English speakers, people from the developing world, and people who are not represented by democratic governments become much more important. ICANN needs to find a way to make sure these people's concerns are heard and rights are protected. Right now, it's a fact that the ICANN community is not adequately seeking out or incorporating the views of the people who are fast becoming the majority of Internet users on the planet.

What does the proposed New Applicant Guidebook mean for Iranian dissidents? For Tibetans and Uighurs? For native speakers of Urdu, Bangla, and Malagasy? How might the recommendations proposed in the IRT report on trademark protection play out for potential domain registries and registrants in the developing world? I have seen no evidence when I was at Sydney that these questions have been seriously explored. If ICANN is serious about its stated mission, shouldn't they be?

The board hasn't made nearly enough effort to seek answers to these questions as they prepare to expand the gTLD space and roll out IDNs - assuming they really do care about the answers, which frankly I think they have failed to prove. On the other hand, in my humble opinion, the Non-Commercial User Constituency (NCUC) hasn't done nearly enough to play the role it could be playing.

The NCUC is currently struggling with ICANN staff over their governance charter. NCUC members had engaged in a consensus process to create a charter that they felt would best enable them to represent the interests of non-commercial Internet users around the world. ICANN staff has rejected that charter and is instead asking them to adopt a top-down governance structure, through which they would only be able to directly elect three out of the six NCUC representatives on the GNSO council. I won't get into all the details but you can read the discussion of the issue here and here, among other places.

Based on what various people at ICANN have told me, there appear to be concerns amongst some members of the ICANN board that the NCUC is dominated by a certain group of American lawyers and academics, who for some reason they don't like. There are a lot of personal animosities in both directions that seem to go way back to when ICANN was founded. Who gives a flying fart about those fights beyond the people involved? Everybody involved with ICANN needs to put the past behind them and figure out how to prove to the world that it can indeed be an effective, truly multi-stakeholder organization that represents the interests of the world's Internet users.

Until recently, the NCUC (which in my observation has in fact until now been run mainly by American and European academics and lawyers), has not had the depth of expertise and experience among its membership - and leadership - to be truly helpful on matters of greatest concern to the developing and non-English speaking world. Nor has the At-Large constituency - the other potential vehicle for individual user interests seemed to be very useful in that regard. But the NCUC has in the past few months undergone a big recruitment drive and has brought in a lot of new members from around the world. I'm optimistic that with its new bottom-up structure (if ICANN allows it) the concerns of a new, more diverse membership will be able to drive the constituency's work at ICANN in the future. I'm also optimistic that if members of civil society groups around the world view the NCUC as an effective way to engage with ICANN, they will make greater effort to participate. It's time for ICANN to prove that its multi-stakeholder bottom-up process, which new CEO Rod Beckstrom has been bragging about, is not a sham.

July 14, 2009

Upon being appointed as ICANN's new CEO in Sydney, Rod Beckstrom gave a rousing speech in which he stressed the vital importance of free expression on the Internet:

I believe in a world where every human being has the ability to communicate with other human beings openly and freely.

He then evoked recent events in Iran:

... what more poignant event do we need than what we've seen in the last few weeks, when people have sought to share their sides of a story -- both sides of a story, without taking a position -- in what's going on in Iran around a democratic election, as people have tweeted, Facebooked, YouTubed and shared their content to organize and participate in what they seek, and the government has organized and participated and taken steps in its nature. It shows how critically vital this platform is, that you have created.

That many people will literally fight and die for.

Many ordinary, powerless people are indeed willing to fight and die. But is ICANN going to help them? Or at very least make sure that their decisions won't help those who want to muzzle them?

As Beckstrom and ICANN's board grapple with competing visions of how ICANN should evolve, will the right of ordinary citizens around the world to express themselves - sometimes in ways that companies and governments don't like - be adequately considered? It's hard to tell.

Do ICANN's recent actions and immediate plans reflect the same respect for free expression that the new CEO claims is worth fighting and dying for? I wish I could say "yes" but many people are concerned that the answer is currently leaning more in the direction of "no."

ICANN is about to implement a massive expansion of Internet real estate, most likely starting next year unless the commercial interests opposing the plan succeed in stalling the process. New "general Top Level Domains" (gTLDs) will allow anybody with the resources to apply to run a new "top level domain" registry (the part of your Internet address that goes after the dot, e.g.: .com, .net, .asia, .mobi, etc.). At the same time, ICANN also plans to implement "internationalized domain names" (IDNs). That means it will be possible for people to set up TLD registries in any language or script - including Chinese, Arabic, Farsi, Urdu, Thai, Bangla, you name it. A concrete example: after some people (yet to be determined: more about that later) have set up some IDN gTLD registries in various non-English scripts, the citizen media community I co-founded, Global Voices, will be able to set up a range of domain names in those scripts for our "Lingua" websites in a range of different languages. In Chinese it might be: 全球之声.组织 ...and so forth.

For the first time, web addresses will be truly multilingual. This represents a huge step forward toward realizing the dream of a truly multicultural, multilingual Internet that is fully accessible to people all around the world. The next several hundred million Internet users on the planet will not be English speakers, and many won't have any education in languages that use anything resembling the Latin alphabet. The next hundred million people who will join the Internet are going to be largely from developing nations, will be increasingly rural, and are going to have much lower levels of education - meaning they're a lot less likely to be the kind of educated elites who are going to feel comfortable typing English-language URL's into browsers.

Let's return to Beckstrom's Iran example. Right now, the Internet is largely the province of Iran's elites. There are a number of economic and political reasons for this. But right now there remain serious linguistic barriers to a rural Iranian with a primary school education seeking information - let alone expressing him or herself - online. With IDN gTLDs, it will for the first time become possible to interact with the Internet 100% in Farsi. Language is not the only barrier to connecting ordinary, less wealthy or educated Iranians living outside Tehran to a global community of Farsi-speakers. But I also think that English-speakers tend to gravely underestimate just how great the language barrier really is to non-college educated people who speak languages not written in Roman scripts.

It's in the interest of global free expression for IDN gTLD's to be implemented as soon as all the basic issues of technical interoperability and basic security can be worked out. However many large trademark owners (mainly companies) are concerned that new gTLD plan will increase their costs and lead to cybersquatting. If new gTLDs are to be implemented, many companies are arguing, there need to be ample safeguards in place for trademark holders. In response ICANN commissioned its intellectual property constituency to formulate a set of recommendations. The Implementation Recommendation Team's final report recommends a number of measures including a global IP Clearing House to mediate trademark disputes, a Globally Protected Marks list and a "Thick Whois" which means that registries will have to retain more consolidated information about domain name owners. Click here for a critiques and concerns submitted by a range of organizations and individuals. Privacy advocates are concerned about the concentration of data and whether this will increase the chances of registries contributing to more Shi Tao cases. Free speechadvocates have long been concerned about the use of intellectual property and trademark claims to stifle legitimate free speech. These concerns abound in spades as regards the IRT report.

At first blush, Mahmoud Ahmadinejad and the Globally Protected Marks List (GPML) do not seem to have anything in common. The first is a politician of debated repute that is seeking to quell disputes over the legitimacy of his election. The second is a recommendation that seeks to protect trademark owners and consumers from an explosion of infringement and source confusion that could be wrought by the introduction of new Top-Level Domains (TLDs). However, upon a closer analysis, they do share one common flaw: both have arguably failed to appropriately prioritize the right to free speech.

In Iran, Ahmadinejad, according to major new organizations, leads a government that has placed restrictions on what the press can cover and publish and what people may say in public. Clearly, some, and certainly Ahmadinejad, would argue that these restrictions on speech are necessary to protect the orderly occurrence of commercial and social intercourse in Iran. However, equally clearly, many would argue that these dictates violate at least one traditional, admittedly American, norm regarding speech—the prohibition on its 'prior restraint.' In order words, it isn't 'fair' or 'right' that the Ahmadinejad government has stopped people from reporting or speaking before it is known whether what they intend to say or publish will actually cause unrest.

In the IRT Final Draft Report, a recommended new mechanism, the GPML, is proposed, which will:

I. prevent individuals from applying to create a new TLD that is identical or confusingly similar to certain 'globally protected marks' until the party interested in running the TLD has gone through a not insignificant administrative process and proven "that the applied-for TLD is not sufficiently similar (visually, aurally, and in commercial impression) as to be likely, as a matter of probability and not mere possibility, to deceive or cause confusion or that it otherwise has legitimate rights to use the applied-for TLD", IRT Final Draft Report, p 19., and

II. prevent individuals from registering domain names in a new TLD that are identical to certain 'globally protected marks' until they prove that the "registration would be consistent with generally accepted trademark laws; namely, that its use of the domain name would not infringe the legal rights of the GPM owner." IRT Final Draft Report, p 19.Or more explicitly stated, in such cases, "[t]o overcome the block, the applicant must show that it has a right or legitimate interest in the initially blocked name." Id.

Just as in the Ahmadinejad case, some would argue that these restrictions are necessary to protect the orderly occurrence of commercial and social intercourse on the Internet. However, also as in the case above, many would argue that these rules violate the traditional American and Internet norm that prohibits 'prior restraints.' In other words, it isn't 'fair' or 'right' for ICANN to stop people from creating TLDs or registering domain names before it is known whether the use of a word in the TLD or domain name, in fact, infringe upon the rights of a trademark holder.

Given the centrality of the idea of 'prior restraint' to this post, it seems important to outline the concept more definitively. Thus, more specifically, 'prior restraint' is the creation of any mechanism that effectively prevents or retards an individual from speaking or publishing material until they can prove the truthfulness or legitimacy of words they intend to speak or the material they intend to publish. See Near v. Minnesota, 283 U.S. 697 (1931). In the Ahmadinejad case we see a 'prior restraint' on speech until the speaker or publisher can show the Iranian government that the speech (broadly construed) will not to cause unrest in the population. In the GPML case, we see a proposed 'prior restraint' on the publishing of a TLD or domain name into the DNS until the publisher can prove that they have a 'legitimate' interest in the word or words at issue.

Later he writes:

Given the importance of the importance of the concept of 'prior restraint' in the context of the American legal tradition, not to mention in the context of the Internet's cultural tradition, it is difficult to imagine how the bestowing the right of 'prior restraint' on the owners of 'globally protected marks' meets this test. More specifically with regard to the latter issue, given the centrality and strength of the prohibition on 'prior restraints' in United States constitutional jurisprudence and that ICANN is inextricably linked and/or given authority by a federal agency of the United States government, it seems apparent that any opponent to the proposed scheme would have, at least at first blush, a credible argument to make before US courts, should they desire to prevent the implementation of the IP Clearing House recommendation into the new TLD space.

Beckstrom made it pretty clear to the New York Times last week that he thinks California Law (which last time I checked was under U.S. law) is good for ICANN and good for the Internet. Will he make that case to the IRT-supporters at ICANN?

ICANN's beleaguered Non-Commercial Users Constituency - the body in ICANN set up to represent non-commercial grassroots interests including those of, say, Iranian student protesters trying to use the Internet to organize and get their message out - has issued two long position papers, one on the substantive problems and one on the procedural problems of the IRT. In a nutshell, they write:

"the substantive IRT recommendations take ICANN far afield of its technical scope and mission, create substantive new trademark rights (beyond existing law), gut existing safeguards and fair procedures for domain name registrants in the Uniform Dispute Resolution Policy (“UDRP”), and create an unbounded situation for abuse by trademark lawyers and those representing trademark owners."

If you're interested in working with the NCUC to advocate for non-commercial grassroots interests in the domain name system, apply to join the constituency here (having no funding and no paid staff, their site is not the most impressive ever to be seen, but they're working to build it with a group of volunteers).

The NCUC itself is fighting for fair representation within ICANN's allegedly bottom-up, grassroots, and inclusive decision-making process. Right now they are under-represented on the GNSO Council (one of the councils that inputs to the iCANN board which then makes final decisions). Efforts to get equal representation for NCUC delegates on the council, in proportion with commercial interests, have met with roadblocks. It's a long, political story. Click here and here for all the gory details. In a nutshell: first, the NCUC is having a charter imposed on them which create a very top-down structure, as opposed to the more bottom-up and democratic structure agreed upon by the community; secondly, the NCUC is only allowed to elect 3 of its 6 council seats: the remaining 3 will be appointed for them by the Board. NCUC chair Robin Gross writes:

Welcome to "bottom-up" policy making at ICANN: where participants are invited to build a "consensus" among a broad range of interests, only to have that consensus discarded by ICANN as a result of relentless insider back-channel lobbying from special interests.

Apparently we noncommercial users wasted our time building consensus among global civil society and participating in a public discussion forum, when we should have been lobbying ICANN board members and ICANN executive staffers -- since that seems to be the only channel of public input ICANN feels accountable to.

Obviously, noncommercial users will never be able to effectively participate in a policy development forum that is predicated on and dominated by insider lobbying from entrenched commercial interests. ICANN's Board of Directors has a responsibility to the global public interest to ensure noncommercial interests can play a meaningful role in ICANN policy development despite its lack of economic backing. Unfortunately protection for noncommercial interests is systematically being squeezed-out of ICANN's policy development process by commercial interests.

Many people representing commercial interests might argue that simply by engaging in Internet business and connecting people around the world, the needs and interests of students in Iran or ethnic minorities in China are ultimately being met anyway. But experience with Microsoft, Yahoo, Google, and other companies in China has shown that the real world is not so simple. Companies do not always have the human rights interests of their users foremost in mind - understandably, they're seeking to maximize profits for their shareholders. As result, however, free expression can become collateral damage. Google, Yahoo, and Microsoft finally recognized this to be true and signed on to the multi-stakeholder Global Network Initiative, working together with non-governmental free speech organizations, academics, and socially responsible investors to make sure that they conduct their business around the world in ways that do not trample on users' rights to free expression and privacy.

I hope that like those three Internet giants, ICANN will also recognize that even the most well-meaning Internet entrepreneurs from Silicon Valley are capable of making very bad mistakes. Ordinary non-commercial Internet users all around the world who use the Internet to improve their communities and countries would very much like to help ICANN build an Internet that can support and expand global freedom. But most of these people don't have budgets to fly around the world to ICANN meetings, as companies and governments do. ICANN needs to make an effort to ask questions, seek out these people's concerns, and really listen.

Let's hope that Beckstrom will live up to what he said in Sydney. Nobody expects him to die for free speech as did the Iranian activists he praised. But we certainly hope that he will make a genuine effort to support and protect it.

July 03, 2009

Nobody else appears to have reported this - at least not anywhere I can find - but last week marked a major turning point for China's engagement with ICANN. It was probably also a major turning point in China's strategy on Internet governance.

(It's likely that some of my more China-focused and less-techie readers have never heard of ICANN - the Internet Corporation for Assigned Names and Numbers. This California-based non-profit corporation is responsible for making sure that the Internet functions as one globally inter-operable system. Its primary job is to coordinate the global assignment of domain names and IP addresses - which turns out to be a very complicated and increasingly political job. Click here,here, here, and here for useful background.)

One reason the Chinese government disengaged from ICANN and is now re-engaging will be familiar to China wonks: Taiwan. The issue of what it should be called. Beijing was not interested in lending any legitimacy to Taiwan's government under the pro-independence president Chen Shui-bian, and the Chen government wasn't big on compromising with Beijing either. Now it's agreed that Taiwan will officially be referred to as "Chinese Taipei" at ICANN (though the .tw designation won't change), and the two governments in the Ma Ying-jeou era are more willing to be pragmatic with one another, in cyberspace as well as in "meatspace."

The second reason for China's re-engagement with ICANN is that the Chinese government and ICANN have both realized they need each other, at least for the short and medium term.

Some background (skip this paragraph if you are an Internet governance wonk): The Chinese government has long suported Internet governance reform. The fact that ICANN (founded in 1998) ultimately answers to the U.S. Department of Commerce has for most of this decade been a matter of concern to a number of governments, from China to Brazil, Iran, and the European Union. Reform proposals have ranged from ICANN "internationalization" - with supervision by multiple governments - to scrapping ICANN completely and transferring its functions to a U.N. body like the ITU (International Telecommunication Union). Arguments over ICANN's future reached a climax in 2005 during the run-up to the World Summit on the Information Society in Tunis, at which governments agreed there wasn't enough consensus to change the ICANN-based status quo. Instead, the Internet Governance Forum was created with a 5-year mandate to continue inter-governmental and multi-stakeholder dialogue on how the global Internet should be governed, managed, developed, and regulated in the future. That mandate will end next year. In May of this year China publicly opposed the renewal of the IGF's mandate, declaring it a costly, messy, time-wasting shop and reiterating its longstanding position that Internet governance should be in the hands of sovereign governments, not other groups. Meanwhile the Joint Project Agreement between ICANN and the U.S. Department of Commerce expires this September. The U.S. Congress, concerned with U.S. interests, wants to keep things as they are. The European Union issued an official statement last month calling for "a more open, independent, and accountable governance of the Internet." African nations, interestingly, have shifted from supporting reform to supporting the status quo. Chinese officials have continued to express concern about a "monopoly" controlling the Internet, and have made it clear that they want to continue discussing the JPA, but I've not seen anything to indicate an official Chinese comment on the EU position or any other government's position.

According to Paul Twomey who stepped down as CEO of ICANN last week, China has not recently made public statements on ICANN and the JPA. Meanwhile he, the ICANN board, and the other members of the Governmental Advisory Committee have been working hard to make China feel comfortable engaging with ICANN. Here's what he said to me in response to my question about China's position:

In terms of the relationship with the United States government and the Joint Project Agreement, I haven't actually heard what the position of the Chinese government is but they have publicly said things in the past. But I dont think we're in anything like the bipolar situation that we had three four five six years ago, where we're sort of "ICANN love it or hate it." I don't think it's in that space anymore. I think it is, much more pragmatically, that this is an institution where there's a space for the Chinese government to participate in, that it's looking after the interests of the Chinese internet community, that they're dealing with real issues that really affect their concerns, and they're welcome. And i think that's important.

China can't afford not to engage with ICANN at this point in time. The Internet is about to undergo a huge real estate expansion and the Chinese government - along with China's domain name registrars - wants to make sure that Chinese government interests are well served as the rules and technical arrangements get laid out between now and early next year.

In 2010 ICANN will implement two big changes, and China has a big interest in how these changes are implemented. First, ICANN will soon allow anybody (who can pay the six-figure registration fee) to apply to run a "generic top-level domain" (gTLD) (Explanation for non-wonks: .com, .net, .cn, .asia, .mobi, .org, .gov, et cetera are all "top-level domains;" the word before the dot, for example "cnn" in cnn.com is called a second-level domain and that's what individuals, organizations, and companies buy when we purchase a domain name for our website. So for instance, if I was extremely rich and had the technical resources I could apply to create and operate .rebecca). So a religious organization, a political party, a company, or anybody with the resources who wants to administer a distinctive Internet address can apply to establish a new gTLD.

But that's not all. In 2010 ICANN will not only allow more gTLD's to be created, but it will also enable the creation of "internationalized" top-level domains, in non-English/non-Roman letter scripts. In other words it will for the first time be possible to have internationally accessible top-level Internet addresses in Chinese, Arabic, Farsi, Urdu, Thai, Japanese, and whatever other language can be input onto a computer. This is huge because it will make the Internet much more accessible to non-English speakers who have difficulty dealing with the current English-based global domain system. If we really want a truly global and multilingual Internet, having "international domain names," or IDN's as ICANN calls them, is essential. These new international top-level domains (IDN TLDs) will be divided into two categories: "country code TLDs" (ccTLDs) and "general TLDs" (gTLDs). For existing English-character ccTLD's (like .cn) each relevant country gets jurisdiction over how it is administered and the same will be the case for international ccTLD's. So .中国 will be controlled and administered the same way as .cn, and websites under that top-level domain will be subject to Chinese law. (Chinese bloggers have informed me that they stay away from .cn domain names because they lose their web address if their website is too politically controversial.) gTLD's, however, are different. ICANN's intention is that anybody anywhere in the world (with adequate resources) can apply to run a Chinese language gTLD. I asked Twomey what happens if people in, say, Canada or Australia apply to run .falungong and the Chinese-language equivalent. Here's what he said in response:

First of all our process, and the process of moving our policy forward, are neutral processes. And we have a series of objections mechanisms through which people can bring objections, one which we're still working through, which is morality or public order, which is a term that exists in international treaties. There's still a great deal of discussion including in the Government Advisory Committee about how that can possibly work, and should it even be there.... But ICANN is not in the business of the application level. We're not in the business of content. So the strings that people might put forward, were not in the buisiness of deciding whether its a good string or not. There are opportunities, but we're not in the business of saying that's a good string or a bad string. We dont like that one we like this one. And its global. The generic top level domains are global top level domains.

So, in other words, I followed up, anybody can apply to run a generic TLD in any language from anywhere? He replied:

That's right. Its a global technology. The technology doesn't recognize geographic boundaries so we support that. Now whatever governments might decide to do in terms of access or filtering is their business not ours... and we leave that.. because we are if you like the guardians of the single inter-operable internet, our community and the ISPs [internet service providers] are the people who provide the single inter-operable internet. We think it's very important that the issues of the addressing and routing system are separate from the issues of content carried on them. And so we don't comment, we dont condone, but we don't make comment upon those sort of content issues. But what we do say is: you know, if a government has a content issue, don't break the domain name system to try to fix it. Because that's like killing the goose that laid the golden egg.

Finally, here's what Twomey said about jurisdiction of gTLDs:

Let's make it clear that generic top level domains, when they're created, will have contracts with ICANN. And those contracts will clearly state that the applicable law is the law of California. And they will be contracts. Right? You know, any national laws that apply to end registrations we can't comment on, but the law under which the TLD will actually operate will be the law of California.

Many of the details, however, in terms of how a government or anybody else can object to the creation of a new TLD on the grounds of "morality and public order," and under what criteria the ICANN board then comes to a final decision, have yet to be worked out. Also, in the case of multiple applicants for the same TLD, there will be some kind of process for the ICANN "community" to decide who deserves to get that particular domain. So being there at ICANN meetings is very important if you want to influence how the rules get shaped and who has rightful claim over various names. Having the ear of board members by developing a personal relationship with them is also very important, I'm told by people who currently run generic TLDs.

Then there are trademark and other issues related to who has the "right" to a particular TLD name. There is already a big fight over the extent to which brand names can be protected or reserved by companies that are worried about their trademarks being (in their view) appropriated by others. The Chinese government and Chinese companies have an interest in trademark protection not overly favoring Western business and industry on the one hand, while still protecting Chinese companies on the other, while also making sure that arbitration mechanisms are properly internationalized and not overly Western-centric. There are also concerns about who has a right to register and administer, say, .beijing or .guilin - to name a couple examples. The Chinese are also concerned that fights over trademark protection and proposed attempts by ICANN to create a new trademark arbitration body will delay the roll-out of gTLDs in general, and internationalized gTLD's in particular.

Then there are a bunch of technical issues related to this multi-lingual rollout, including an appeal by the Chinese, Japanese, and Koreans among others that ICANN must change it's current rule that non-country TLD's must be 3 characters or more - given that most Chinese words are two characters in length, the three-character minimum requirement is obviously unreasonable. While the Chinese have actually already implemented Chinese-language TLD's within mainland China, they don't work outside of China. Asian ICANN participants last week repeatedly expressed frustration that it's taking too long for ICANN to move forward on this.

So there are lots of reasons why the Chinese need to engage with ICANN now, and not wait till it's restructured or its functions re-appropriated to its greater liking. Here's how Twomey put it:

First of all there's a much better understanding of what ICANN does, what it is and what it's not. I think secondly ICANN is working on issues that really are important to the internet communities of China, for instance. So particularly on the internationalized domain names and the internationalized domain names for the country codes, these are core areas of interest to the Chinese, especially to the Ministry of Information Industry and Technology. But also for the broader Chinese internet community. I'm very pleased that not only has China come back to the GAC but that there's a broad commitment in China now to have Chinese institutions and organizations participating in the ICANN context. ...ICANN is looking at the role of the GAC and what it does and how it participates. And how it interacts with the board. we've continued to have that discussion. I think it's useful that China's at the table to have that discussion.

I was a first-timer at ICANN last week, but sitting through a week of meetings, I got the distinct impression that few people expect ICANN to be radically restructured this year. Most people seemed to expect that the JPA will be renewed in some fashion for now, due to lack of consensus over an alternative. Meanwhile the Government Advisory Committee seems to be getting an expanded role, with more opportunity to lobby the interests of governments as ICANN moves forward in radically expanding the Internet's real estate. How things evolve in the longer run is harder to say, but the people running ICANN are clearly trying to make governments feel welcome to engage and work for change from within - pointing out that this is more likely to be conducive to a stable global Internet - rather than try to dismantle or radically and suddenly restructure it from the outside.

Bringing in China was likely a critical step by ICANN to ensure its own survival, at least in the short to medium term. For now, ICANN and China need each other.